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Martinez v. Superintendent of Eastern Correctional Facility

United States Court of Appeals, Second Circuit

November 10, 2015

DAVID MARTINEZ, Petitioner-Appellant,
v.
SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent-Appellee. [1]

 Argued August 26, 2015

CORRECTED: November 12, 2015.

Appeal from the United States District Court for the Eastern District of New York. No. 11 Civ. 4330 -- Nina Gershon, Judge.

Petitioner-appellant David Martinez appeals from the decision of the United States District Court for the Eastern District of New York (Gershon, J.), denying his petition for a writ of habeas corpus. [A 1] Although Martinez seeks to challenge his 2007 New York state conviction for charges including murder in the second degree, he failed to file his petition within the one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) (2015) (" AEDPA" ). The district court held tat Martinez was not entitled to equitable tolling of the statute of limitations because he had not acted with reasonable diligence during the period for which he sought tolling. [A 10] We conclude that the court's analysis of Martinez's degree of diligence is premised upon a misapplication of our decision in Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). Accordingly, we VACATE the district court's order dismissing the petition and REMAND the case for further proceedings consistent with this opinion.

RANDOLPH Z. VOLKELL, Law Office of Randolph Z. Volkell, Merrick, NY, for Petitioner-Appellant.

DONALD J. BERK, Assistant District Attorney, Nassau County (Madeline Singas, District Attorney, Nassau County, Tammy J. Smiley, Assistant District Attorney, on the brief), Mineola, NY, for Respondent-Appellee.

Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges.

OPINION

Page 28

John M. Walker, Jr., Circuit Judge :

Petitioner-appellant David Martinez appeals from the decision of the United States District Court for the Eastern District of New York (Gershon, J. ), denying his petition for a writ of habeas corpus. Although Martinez seeks to challenge his 2007 New York state conviction for

Page 29

charges including murder in the second degree, he failed to file his petition within the one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) (2015) (" AEDPA" ). The district court held that Martinez was not entitled to equitable tolling of the statute of limitations because he had not acted with reasonable diligence during the period for which he sought tolling. We conclude that the court's analysis of Martinez's degree of diligence was premised upon a misapplication of our decision in Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). Accordingly, we VACATE the district court's order dismissing the petition and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

On July 20, 2007, David Martinez entered a guilty plea in New York state court to charges including attempted murder, robbery, and assault. On February 11, 2008, he was sentenced to twelve years' imprisonment, five years' post-release supervision, and restitution. He was then transferred to the custody of the New York State Department of Corrections and Community Supervision. Martinez immediately hired an attorney to seek post-conviction relief, but this attorney evidently showed a greater interest in collecting fee payments than in providing Martinez with adequate representation. The attorney missed the habeas petition deadline and was barely responsive to Martinez's case, as the following facts demonstrate.

On March 3, 2008, three weeks after his sentencing, Martinez and his mother hired attorney Anthony Denaro to handle his post-conviction relief. Denaro, Martinez, and Martinez's mother executed an agreement for legal services. They agreed upon a retainer payment of $5,000, and Martinez's mother paid $2,000 that day. Denaro accepted the money and then did virtually nothing for almost a year. Between March 2008 and January 2009, the only communication that Martinez received from Denaro was a November 28, 2008 billing statement.

Denaro claims his firm sent Martinez two letters in early 2009, more than ten months after Martinez hired him: a letter from Denaro on January 28, 2009, enclosing all court documents in his possession, and a letter from Denaro's colleague, Jack Evans, on February 12, 2009, requesting a detailed statement of the facts and circumstances in his case. Denaro also claims he received a letter on March 3, 2009 from Martinez, answering Evans' request. None of ...


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